Partition of Estate Agreement — Notarial Certification and Conditions of Validity

We explain in detail the formal requirements of a partition of estate agreement under TMK Art. 676, the requirement that all heirs participate, the process of transferring immovables and the tax obligations.

Heirs may bring the joint community over the estate to an end by agreement or by judicial partition. TMK Art. 676 requires the partition agreement between heirs to be in writing. This article addresses the nature of the partition agreement, the absence of a notarial requirement, registration of immovables, tax obligations and disputes.

The Legal Nature of a Partition of Estate Agreement

A partition of estate agreement is an agreement concerning the division among heirs of the assets forming part of an estate. Under TMK Art. 676 heirs may agree by contract on the partition of all or part of the estate assets. The agreement ends the joint ownership between heirs and enables the transition to individual ownership. Its legal nature is that of a partition agreement in the law of obligations. The agreement is formed by the common intention of all the heirs and identifies the share of the estate falling to each. It is obligatory in nature and, as regards immovables, a land registry transfer must also be effected. The agreement itself does not directly transfer ownership; it gives the heirs the right to demand a transfer of title from one another.

A partition of estate agreement is optional; heirs are not obliged to make one. Where they cannot agree, each heir has the right under TMK Art. 642 to seek partition of the estate, and that claim may be brought before the court. A partition made by a court is not a partition of estate agreement but a judicial decision.

Formal Requirements

Under TMK Art. 676 the validity of a partition agreement between heirs depends on written form. The presence of an immovable in the estate does not alter that rule; a notarial deed is not a general condition of validity. That said, a partition agreement has obligatory effect; registration in the land register is required for the transfer of ownership of an immovable. The land registry directorate's current document and signature verification practice is followed; in the event of a dispute, an action to compel registration may arise.

The Requirement That All Heirs Participate

The participation of all the heirs is required for the partition of the whole estate; partial partition is nevertheless possible, and it is not a constitutive requirement that every asset be shown in the agreement. The transfer by one heir of their share to another heir or to a third party is separately governed by TMK Art. 677 and must not be confused with a partition agreement.

Where a transaction is carried out on behalf of a minor or a person under legal restriction, in addition to legal representation the guardianship authority's permission under TMK Art. 462 and, where there is a conflict of interest, a representative trustee may be required. The guardian's signature alone should not be accepted as sufficient in every case.

Content of the Agreement

The statute does not provide a detailed list of contents. It must nonetheless be clear beyond doubt from the written agreement between which heirs, in respect of which estate assets and with what intention to partition it was concluded. The following information is important for practice and registration:

Parties and representation: the heirs' identities, their signatures and any authority to represent.
Deceased and heirship: the deceased's identity and the certificate of inheritance enabling the heirs and shares to be determined.
Subject of the partition: identification of the assets subject to partial or full partition, and in particular of immovables by their land registry details.
Distribution and payments: which asset is left to whom, and any obligation of equalisation or payment of money.
Equalisation: how the dispositions within the scope of TMK Arts. 669–675 are taken into account in the partition.

A national identity number or a certificate of inheritance is not a constitutive element of the written agreement listed in the statute; they may nevertheless be required in official practice and for registration.

The Special Position of Agreements Involving Immovables

A written partition agreement may leave an immovable to a particular heir; but ownership passes by registration in the land register. A notarial deed does not of itself effect a land registry transfer, nor does the absence of a notary invalidate a written agreement. A certificate of inheritance is not a constitutive element of the agreement, but is required in practice so that the heirs and shares can be identified in the land register. The land registry directorate also checks the tax, identity and representation documents through current electronic systems.

Tax Obligations

The period for filing the inheritance and transfer tax declaration varies according to where the death occurred and where the heirs are. Where the death occurred in Türkiye and the taxpayer is in Türkiye, four months; where the death occurred in Türkiye and the taxpayer is abroad, six months; where the death occurred abroad and the taxpayer is in the same country, four months, in another foreign country eight months, and in Türkiye six months. Special situations are assessed separately under Art. 9 of the Inheritance and Transfer Tax Law. Failure to pay the tax in full does not in every case prevent the transfer of the estate; Art. 17 of the Law contains provisions on clearance, security and withholding. Where property acquired gratuitously by inheritance is later sold, the acquisition is not treated as starting the five-year period for capital gains under repeated Art. 80 of the Income Tax Law; acquisitions by inheritance fall outside the scope of that gain. Commercial activity and other types of income are reserved.

Annulment of a Partition Agreement

A partition of estate agreement may be annulled where certain conditions exist. The grounds of annulment are determined by the general rules of contract law. The principal grounds are as follows:

Defects of intent: in cases of mistake, deception and duress governed by TBK Arts. 30-39, the heir whose intention was vitiated may, within the statutory period and on the statutory conditions, declare that they are not bound by the agreement or raise a defence. The one-year period runs from discovery of the mistake or deception, or from the cessation of the effect of the duress.
Unfair exploitation: where the conditions of manifest disproportion and exploitation in TBK Art. 28 are met, the injured party may, within the period, declare that they are not bound and seek restitution or the correction of the disproportion.
Incapacity or want of representation: the consequence is determined by the person's capacity, the legal representation and the necessary guardianship permissions; not every deficiency produces the same sanction.
Collusion: where it is proved that the apparent partition does not reflect the parties' true intentions, the provisions on collusion apply.

The Difference from an Action for Dissolution of Co-ownership

A partition agreement rests on the intentions of all the heirs concerned. Where there is no agreement, recourse is had to an action for partition or dissolution of co-ownership. In disputes concerning the division of movables and immovables and the dissolution of co-ownership, application to a mediator has been a condition of action since 1 September 2023. Where no agreement is reached, jurisdiction and venue are determined by the nature of the claim.

The Partition Process in Practice

In practice the partition of estate process generally consists of the following stages:

1. Obtaining the certificate of inheritance: a certificate of inheritance must first be obtained from a notary or the civil court of peace in order to identify the heirs. The certificate is the official document showing who the heirs are and their shares.

2. Identifying the estate: the deceased's assets (immovables, vehicles, bank accounts, debts and so on) must be fully identified. Enquiries may be made for this purpose of land registry directorates, banks, vehicle registration authorities, the Social Security Institution and other bodies. 3. Inheritance and transfer tax: the declaration is filed within the statutory period. The effect of non-payment of the tax on registration is determined by the provisions on clearance, security and withholding in Art. 17 of the Law.

4. Negotiation among the heirs: all the heirs come together and negotiate how the estate is to be divided. It is useful to negotiate with an attorney present in order to prevent disputes arising later.

5. Preparing and signing the agreement: once the heirs have agreed, the partition of estate agreement is prepared. For agreements involving immovables it is recommended that they be drawn up before a notary in official form.

6. Land registry and other transfers: after the agreement is signed, transfers are effected at the land registry directorate for immovables and at the vehicle registration directorate for vehicles.

Partition of Estate Agreements in the Light of Case Law

In practice, written form, the intentions of all the heirs concerned, the scope of the partition, representation and capacity, registration of immovables and allegations of defective intent are each examined separately. The absence of a notarial deed does not of itself invalidate a written partition agreement; conversely, ownership of an immovable does not pass without registration.

Frequently Asked Questions

Is a notary required where there is an immovable?

No. Written form suffices under TMK Art. 676; land registry registration is required for ownership to pass.

Must the whole estate be partitioned?

No, partial partition is possible.

Does a capital gain arise if an immovable acquired by inheritance is sold within five years?

Gratuitous acquisition by inheritance falls outside repeated Art. 80 of the Income Tax Law; other characterisations such as commercial income are reserved.

Is mediation required before an action for dissolution of co-ownership?

Yes, it has been a condition of action since 1 September 2023.